Calcutta High Court (Appellete Side)
In Re : Bhairab Chakraborty & Anr vs State Of on 31 August, 2021
31.08.2021
Court No.30
Avijit Mitra
CRA No. 163 of 2021
with
IA No. CRAN No. 2 of 2021
(through video Conference)
In Re:- An application under section 389 (1) of the Code of Criminal
Procedure filed in connection with Session Case No. 55 of 2009;
And
In Re : Bhairab Chakraborty & anr.
Petitioners/Appellants
Mr. Saryati Datta
..... for the Petitioners/Appellants
Mr. Saibal Bapuli,
Mr. Arani Bhattacharya
....for the State
This is an application for an order of suspension of sentence
and grant of bail pending appeal against an order of conviction and
sentence. The petitioners/appellants have been convicted of offences
punishable under sections 302/34 of the Indian Penal Code (in short,
IPC).
Mr. Datta, learned advocate for the petitioners/appellants
submits that there were five accused persons including the
appellants herein. On the basis of the evidence on record
learned Court below acquitted three of the accused persons but
on the selfsame evidence the appellants were convicted. There
are inconsistencies in the deposition of the prosecution
witnesses but the learned Court disregarded the same, without
any cogent reason.
Drawing the attention of this Court to the contents of the
judgment, Mr. Datta submits that the victim was found to be
capable of speaking by the doctor who conducted autopsy and
the PW-16 deposed that the patient stated to him that she
suffered a suicidal burn due to quarrel between herself and the
appellant no.1. The oral dying declaration of the victim lady
before the PW-1 and PW-2 do not tally with the documented
dying declaration before the doctor. In the said conspectus, it
cannot be said that the appellants have no chance of success in
the present appeal.
He further submits that the appellants were on bail during
trial and they have not misused such liberty. There is also no
possibility towards early disposal of the appeal and in view
thereof, the appellants' sentence may be suspended and they
may be enlarged on bail on any stringent condition.
Mr. Bapuli, learned Additional Public Prosecutor appearing
for the State opposes the appellants' prayer and submits that the
sequence of events clearly establishes the complicity of the
appellants. The judgment impugned does not suffer from any
patent infirmity and the evidence on record is sufficient to convict
the appellants.
We have heard the learned advocates appearing for the
respective parties and have assessed the quality of the evidence
recorded by the learned court below.
Prima facie there are inconsistencies in the oral dying
declaration and the documented dying declaration of the victim
lady, who expired about nine days after the alleged incident. The
appellants were on bail during trial and have not misused such
liberty. Keeping in view the principles of law laid down by the
Hon'ble Supreme Court in the case of Kashmira Singh vs. State of
Punjab, reported in (1977) 4 SCC 291 and on an overall
assessment of the facts, the evidence on record and prima facie
merits of the appeal, we are of the opinion that it would be
appropriate to suspend the sentence and to grant bail to the
appellants.
For these reasons, we allow the application, being C.R.A.N.
No. 2 of 2021, suspend the sentence and direct that pending
hearing of the appeal, the appellants, namely, Bhairab
Chakraborty and Manju Chakraborty, shall be released on bail
upon furnishing a bond of Rs.10,000/- with two sureties of like
amount each, one of whom must be local, to the satisfaction of the
learned Chief Judicial Magistrate, Suri, Birbhum with a further
condition that the appellant no.1 shall meet with the Officer-in-
Charge of Suri Police Station once a fortnight on and from 14 th
September, 2021 until further orders.
The application for suspension of sentence, being C.R.A.N.
No. 2 of 2021 is, thus, disposed of.
All parties shall act on the server copies of this order duly
downloaded from the official website of this Court.
(Rabindranath Samanta, J.) (Tapabrata Chakraborty, J.)
